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GameStop Used Game Lawsuit

A lawsuit has been filed in the Northern District of California against GameStop, citing deceptive practices relating to used game sales. IGN has details on the suit, which stems from a customer buying a used copy of Dragon Age: Origins with the belief that additional DLC was available for free based on the cover blurb. Of course this DLC is part of the new trend intended to impede used-game sales, which the customer learned when they tried to get the DLC, which set them back an additional $15.00, making their final purchase price for the used game $10.00 more than the cost of a brand-new copy (that sound you hear is EA execs exchanging high-fives). IGN has a copy of the complaint in Adobe Acrobat-format, and an article on this on Gamasutra offers thoughts from an analyst saying that GameStop will probably be able to remedy this problem by affixing stickers to used games clarifying DLC availability.

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117. Re: GameStop Used Game Lawsuit Mar 31, 2010, 12:44 GameMel
 
I just looked at the lawfirm's website they put up about this case

it's www.GameStopLawsuit.com
 
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116. Re: GameStop Used Game Lawsuit Mar 28, 2010, 18:58 Tumbler
 
Perfect example of the used vs new battle today. So I decided to buy Modern Warfare 2 for the PS3 today. So I start searching around for who has the best price.

Gamestop: 49.99 new, 49.99 used. (Weird but not low enough)
Walmart 49.99.
Ebay and craigslist used is about $40.
Amazon $40 new! Wait $34.99 used (fullfillment by amazon!) sold.

It's all about price. I get free 2 day shipping (prime is AWESOME) and no tax so it will be here in 2 days for exactly $34.99. Not a hard choice. If you want my money give me a better price. Amazon simply wants the sale more than you do. Selling these for $34.99 is less than I can buy off craigslist which is surprising.

Competition rules. You can cry about it or you can get in the game.
 
99gamers.com-Game trading site, PC digital trading!
Kickstarter "Game Developer"!
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115. Re: GameStop Used Game Lawsuit Mar 28, 2010, 16:31 everyone
 
Bobbs-Merrill Co. v. Straus.  
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114. Re: GameStop Used Game Lawsuit Mar 28, 2010, 16:06 shponglefan
 
Jerykk wrote on Mar 28, 2010, 00:12:
I understand your argument perfectly.

Considering the strawmen and non-sequiturs in that one paragraph alone, it's painfully obvious you don't.

But that's fine. I've learned debating with you that you tend to hold... odd opinions on things.
 
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113. Re: GameStop Used Game Lawsuit Mar 28, 2010, 11:46 Tigger
 
everyone wrote on Mar 28, 2010, 10:00:
EULA are dubious at best, and almost certainly couldn't be used to enforce resale limits.

I never said they could be, I said that they ' allow the purchaser of the software to transfer 'right to use the software' at least once.'. I am using this to support the idea the resale of games is legal and permitted and there really isn't anything anyone can do about it.

I mean, seriously, it doesn't take a genius to figure out that if this was a slam-dunk deal, EA, Activision and every other publisher on the planet would have sued the shit out of EB/GameStop ages ago and stopped used game sales. The fact is that the law on the issue is gray and no one really wants to take it up with the Supreme Court because if they might lose. Besides, this is really protected under the first-sale doctrine.

]
The supreme court disagrees with you about the copyright holder retaining all rights on each copy sold. The copyright holder retains the rights to the intellectual material, but they do not retain all rights to the specific copy sold.

Which case?




 
 
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112. Re: GameStop Used Game Lawsuit Mar 28, 2010, 10:00 everyone
 
EULA are dubious at best, and almost certainly couldn't be used to enforce resale limits. Just for example, what if I bought a piece of software; declined the EULA and placed the open copy on eBay. Now companies could require you to sign an agreement before purchasing the software, but they won't, because it would hurt sales. Consumers would be reluctant to enter into a legally binding agreement before making a video game purchase.

The supreme court disagrees with you about the copyright holder retaining all rights on each copy sold. The copyright holder retains the rights to the intellectual material, but they do not retain all rights to the specific copy sold.
Again software isn't special, just because I can buy a tv doesn't mean I'm entitled to reverse engineer all the patented technology inside said tv. That's why we have copyright and patent law. All these hypothetical arguments are already covered under current law and have nothing to do with why it's right or wrong to buy and sell used games.
 

This comment was edited on Mar 28, 2010, 10:32.
 
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111. Re: GameStop Used Game Lawsuit Mar 28, 2010, 09:02 Tigger
 
everyone wrote on Mar 28, 2010, 06:47:
The fundamental fact is that a copyright holder is legally able to produce as many or as few copies of their work as they wish and sell those copies under any terms they wish. But once a copy has been sold they relinquish all rights to said copy, unless otherwise agreed upon contractually. Copyright holders already have legal protections from people making additional copies of their work, that argument is a red herring when discussing used game sales.

In software, the copyright holder keeps ALL rights to the the product. With games specifically, almost all EULAs I've seen allow the purchaser of the software to transfer 'right to use the software' at least once.

Remember that even though you bought the disc, you don't own the software OR the content. The EULA basically states that you bought permission to use the software under certain terms and that those terms can be changed or terminated whenever the copyright holder feels like doing so.

I really like buying/selling used games. So I don't have a problem with it. The game publishers hate it because they are not seeing the second sale - but like the RIAA - they want to have their hand in the till every time the drawer opens.
 
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110. Re: GameStop Used Game Lawsuit Mar 28, 2010, 06:47 everyone
 
The thing I don't understand from the people whom advocate that buying and selling used video games is wrong, is why they don't seem to feel the same why about other products.
You can certainly make the same arguments for just about any product in existence.

The fundamental fact is that a copyright holder is legally able to produce as many or as few copies of their work as they wish and sell those copies under any terms they wish. But once a copy has been sold they relinquish all rights to said copy, unless otherwise agreed upon contractually. Copyright holders already have legal protections from people making additional copies of their work, that argument is a red herring when discussing used game sales.
 
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109. Re: GameStop Used Game Lawsuit Mar 28, 2010, 03:12 Tigger
 
<Rant>

Please note - this is a rant. Don't take it seriously. If you do, go get a drink or a girlfriend. Or both.


The 'Day One' DLC is just a gimmick to get users to buy the game to get the activation code for 'free' content. Then the publisher gets to squeeze another $15 bucks out of ANYONE that buys it used. "Yes, you cheapskate. Bend over and take one from EA," YEEEHAA!

And I wonder where that $15 goes? Do you think the developers see it? Probably not. Doesn't it make you wonder if all these game publishers will end up like the RIAA - suing the shit out of the very people that created and sustained them in a battle for relevance?

And come on - a lawsuit over $15?! Seriously? $15. My taxes are already killing me and now I have to pay for court hearings over $15?! Get fucking serious. Give me his address and I'll mail him the $15. Instead, lets have court hearings about why my taxes keep going up even when the value of my house is going down. And I can't be reassessed why? OH, silly me - I have to pay for some little shit to sue someone over $15.

Next thing you know, we will need an activation code for the game and then the used market bottom out. Tons of kiddies won't be able to get $100 game cards from Grandma and the voice chat on Modern Warfare 2 won't be filled with snobbish little pricks on helium who have nothing better to do then tell everyone how stupid they are for not defending the 'A' capture point.

OK, so maybe we'll still have to contend with those snobbish little pricks on helium, but for fucks sake - what about the kiddies?!


</Rant>
 
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108. Re: GameStop Used Game Lawsuit Mar 28, 2010, 02:15 Tigger
 
Yes. A consumer should be able to resell or transfer the single copy of the work they purchased just as they can with copyrighted works affixed to physical media.

They can. EA actually permits it in the EULA.
 
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107. Re: GameStop Used Game Lawsuit Mar 28, 2010, 00:47 I've Got The News Blues
 
Jerykk wrote on Mar 28, 2010, 00:12:
I think the popularity of movie rentals is why there isn't a flourishing market for used DVDs.
No, that is not the reason because people who rent movies don't typically buy them. It's the people who do buy movies that are not buying and selling used ones. That is why there is no large used DVD market. And, the reason these people don't buy and sell used movies is because it isn't worth the trouble given the already perceived low price.

While I agree that people are more likely to buy something new when it's cheaper, I don't really see how that would dissuade people from buying used games when it's always the cheaper option.
One, it's not worth the risk. Something which is new has a perceived higher value because it's pristine and unspoiled. It's the same reason why people generally don't buy the opened package at a retail store if there is an unopened one available. The second reason why it suppresses used sales is because there simply won't be nearly as many used copies available because people won't bother selling or trading them in. If something is perceived as inexpensive people will simply throw it away when they are done with it or no longer wish to save it.

If there was no radio and no digital availability of individual songs, the used music CD market would be huge.
Not all music ends up on the radio and even that which does get played doesn't get played on demand or in totality (entire albums) so your radio example is inapplicable. And, even back when digital music wasn't available (legally or otherwise), used record and CD sales weren't a huge market like what used video game sales are today.

Unlike movies, videogames will never be offered for free on television or shown in theaters...Unlike music, you can't buy portions of videogames for significantly less than the price of the full game, nor can you listen to videogames for free on the radio.
The Internet is littered with free, legally available video games. So, if someone wants a free gaming experience there is an almost unlimited supply to be had. Yes, those games predominately run on a PC and not a video game console, but those looking for a free video game experience can certainly choose that platform instead and still do so inexpensively. A $300-400 PC can run a lot of free games as can a $250 netbook. Yes, the games which are free are not the same titles as what are available for sale on video game consoles, but the genre and gameplay are the same or similar. Not all movies and music are available for free viewing on the television and radio either. The wide availability of free options isn't suppressing the used market. It's the wide availability of low-priced new product which does.

For the people who buy used games, used copies would still be cheaper than new copies.
Yes, they would still be a little cheaper, but they would not be as popular or as available so their effect on the game developers and publishers would be minimal. More used games would end up in the landfill or the recycling center or stay in people's closets than end up back in the market for sale.

This comment was edited on Mar 28, 2010, 01:03.
 
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106. That price is too high! Mar 28, 2010, 00:15 I've Got The News Blues
 
shponglefan wrote on Mar 27, 2010, 21:05:
Even so, many games still struggle to make money.
I agree, but the reason they fail is that consumers aren't willing to pay the $50 or $60 asking price for them. There are simply too many games on the market all competing at that same price point. So, consumers pick a relatively few winners who get their $60, and all the other games eventually end up getting sent back by the retailers to the publishers.

The periodic deeply-discounted sales at the digital distributors like Steam, Direct2Drive, and Impulse and online retailers like GoGamer have shown just how dramatically PC games sales can spike if prices are set low enough to make buying video games an impulse buy. The problem is that most game publishers haven't learned to apply this lesson more universally and frequently because they are too worried that they will be leaving money on the table if they drastically reduce their prices.
 
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105. Re: GameStop Used Game Lawsuit Mar 28, 2010, 00:12 Jerykk
 
And, sometimes used copies of games are all that is available because the supply of new copies has been exhausted and the game was not re-released.

If a game is no longer being sold and is no longer being manufactured, I have no issue with buying it used because the developers wouldn't see a profit anyway.

Gamestop isn't the be all and end all of used video game sales. You didn't qualify your original statement that I quoted as pertaining only to used games sales by Gamestop where I agree it is more likely than not.

Gamestop is the biggest source of used game sales due to their convenience and immediacy. If you buy on eBay, you often have to bid, pay for shipping and wait for the game to be shipped to you. Gamestop is much easier, as any kid can walk into the store and sell the game they just beat, then use the money or store credit to buy another used game a few feet away.

That is exactly why there isn't such a corresponding flourishing market for used DVD's.

I think the popularity of movie rentals is why there isn't a flourishing market for used DVDs. Most people don't watch a movie more than once so why pay $15-20 for a 2-3 hour experience? Videogames can be rented too, sure, but they typically last much longer than any movie so renting holds less appeal. Even then, there are many people who rent 90% of their games anyway. Movies are also offered for free on television.

While I agree that people are more likely to buy something new when it's cheaper, I don't really see how that would dissuade people from buying used games when it's always the cheaper option.

If the price of the new product is low enough, most people won't bother to sell their new copies so the supply of used product will dwindle to the point where used sales will have negligible effect on new sales. That's currently the case with other media like movies, books, and music.

I don't think you can really compare games to movies, books or music. Movies are very brief experiences which most people only watch once, which is why the movie rental business is booming. Movies can also be watched on television for free. DVDs are also not the only market for movies; theaters are a big source of revenue as well. If there was no rental market and movies weren't shown on TV, the used DVD market would be huge. Books are a physical medium which degrades relatively quickly. As such, the perceived value of a used book is much lower than a new one. Sales of music CDs have suffered throughout the years due to the popularity of radio and digital distribution. If there was no radio and no digital availability of individual songs, the used music CD market would be huge.

Consumers have three legal choices when it comes to videogames: buy new, buy used or rent. Even if retail prices were lowered, these would still be the only options. Unlike movies, videogames will never be offered for free on television or shown in theaters. Unlike books, videogames don't noticeably degrade over time and use. Unlike music, you can't buy portions of videogames for significantly less than the price of the full game, nor can you listen to videogames for free on the radio. For the cheapest people who rent 90% of their games, lowering retail prices would make no difference because renting would still be cheaper. For the people who buy used games, used copies would still be cheaper than new copies.

You're just never going to get it.

I understand your argument perfectly. Used sales are good because they help fund new sales, even if those new sales are for different games from different developers. Of course, there is no distinction between developers so any money you give to one will be shared by all, helping the industry as a whole and making you an altruist. And hey, all used games were bought new at one point, right? It doesn't matter if they were resold 100 times after that because someone originally bought them new! Oh, and used sales are perfectly legal and within your rights as a customer. That means they can't be wrong because legality and morality are one and the same. Who cares about the actual repercussions of buying and selling used games? If the developer doesn't see any money from your transaction, that's not your problem. You paid for the game and didn't do anything illegal so you are an honest customer.

I think that sums it up pretty well.

This comment was edited on Mar 28, 2010, 00:20.
 
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104. Re: GameStop Used Game Lawsuit Mar 28, 2010, 00:02 shponglefan
 
Jerykk wrote on Mar 27, 2010, 23:42:
When you buy used, they see nothing. You might as well not buy it at all.

You're just never going to get it. So I'm going to take PHJF's advice and not waste my time trying to explain to you *again* what should be a relatively simple concept.
 
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103. Re: GameStop Used Game Lawsuit Mar 27, 2010, 23:42 Jerykk
 
Anecdotally speaking, I buy used and new games. It depends on the game, price and perceived value.

I'm guessing that you only buy new games when you're fairly certain you'll enjoy it? Or when there are no used copies immediately available? While I understand that not all games have the same value, what you should do in those cases is wait until the price drops to an acceptable range. At least then the developers will see some profit. When you buy used, they see nothing. You might as well not buy it at all.

This case-by-case stuff is besides the point; I'm talking about in aggregate here.

Like I said, the case by case stuff is the only thing that matters. If you enjoy a game, you should the reward the developer who made that game. Buying a used copy does not reward that developer. Using the money earned from selling that game to buy a new copy of a different game does not reward the developer of the game you bought used and then sold.

Your logic basically states that screwing one person is okay as long as you reward another. It's like if I set my neighbor's house on fire but donated some money to my favorite charity. My neighbor shouldn't be angry, right?

(Some) used game sales help finance new sales. This is not up for debate.

I'm not sure how that helps your argument. If you're looking solely at the aggregate effect of used sales, the used sale cancels out the new sale because it requires that someone buy a used copy.
 
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102. Re: GameStop Used Game Lawsuit Mar 27, 2010, 23:40 I've Got The News Blues
 
Jerykk wrote on Mar 27, 2010, 21:43:
I'm sorry but I highly doubt a $5-10 price difference is the defining consideration for the average consumer when buying games. I think it's more realistic to assume that the people who walk into Gamestop and buy used copies...If used games were considerably cheaper (like $30 instead of $60), I'd be more inclined to agree with you.
Sometimes used games are considerably cheaper than new games. ebay is a great example of where this occurs. And, sometimes used copies of games are all that is available because the supply of new copies has been exhausted and the game was not re-released. Gamestop isn't the be all and end all of used video game sales. You didn't qualify your original statement that I quoted as pertaining only to used games sales by Gamestop and only to the most popular releases there like Halo and Call of Duty where I agree your assertion is more likely than not to be true. The point is that what you originally stated is not an absolute truth. It is no certainty that those who buy a used game would have purchased a new game if the used game were not available because of the difference in price.

Okay, let's say that publishers dropped all their prices by $10. Do you really think this would stop people from buying and selling used games? No, it wouldn't.
Yes, it would although the amount would probably have to be more substantial than just $10. That is exactly why there isn't such a corresponding flourishing market for used DVD's. The low price point of new product is the main suppression of that market. There is no corresponding national retailer in the U.S. for sales of used DVD movies that Gamestop is to video games because the movie industry doesn't price its new product at levels which encourage consumers to purchase used copies over new ones. However, back when movies were first released on VHS tape in the late 1970's and early 1980's, that was the case. The high price of the new product is what spawned the movie rental industry and movie sharing/trading clubs. However, the movie industry eventually realized it could make more money by drastically dropping the price of movies because it would vastly expand the market for them.

It is the relative high price of the video games that is causing consumers who would ordinarily not consider buying a used product to do so and to sell their used games to recoup some of their investment in them. Despite inflation $50 and $60 is still considered a high price point by many consumers for some bit of entertainment on a disc. This is especially true for the young demographic who are the main target of video games since they have more limited disposable income.

In the end, it doesn't matter how much new copies cost if people can always buy used ones.
Of course it matters. If the price of the new product is low enough, most people won't bother to sell their new copies so the supply of used product will dwindle to the point where used sales will have negligible effect on new sales. That's currently the case with other media like movies, books, and music.

This comment was edited on Mar 27, 2010, 23:54.
 
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101. Re: GameStop Used Game Lawsuit Mar 27, 2010, 23:11 PHJF
 
Stop trying to have a sensible discussion with Jerykk. It won't work.  
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100. Re: GameStop Used Game Lawsuit Mar 27, 2010, 22:03 shponglefan
 
Jerykk wrote on Mar 27, 2010, 21:43:
If someone is so cheap that they sell everything they buy, isn't it more reasonable to assume that they are more likely to buy used games whenever possible?

No. Anecdotally speaking, I buy used and new games. It depends on the game, price and perceived value. I know some people who also only buy new games.

In any case, developers don't see any money from that used sale. If you sell a copy of Psychonauts to buy a new copy of Madden, Double-Fine doesn't see a penny. You can claim that you're helping the industry but that's a pretty lame excuse. If you enjoy a game, you should reward the developer who made it.

And if someone sells a copy of Madden to buy Psychonauts then EA doens't see a penny. This case-by-case stuff is besides the point; I'm talking about in aggregate here. (Some) used game sales help finance new sales. This is not up for debate.

Now (some) used game sales also cannibalize new sales. The question is how much and does one outweigh the other. So far there is no data available (that I've seen anyway) to determine this. That is what the debate should be about, not these attemps to eqivocate over piracy.
 
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99. Re: GameStop Used Game Lawsuit Mar 27, 2010, 21:43 Jerykk
 
Or buying it at all because the very reason they may have bought the game was because of the discounted price.

I'm sorry but I highly doubt a $5-10 price difference is the defining consideration for the average consumer when buying games. I think it's more realistic to assume that the people who walk into Gamestop and buy used copies of Madden, Halo, CoD, GoW, or any other heavily marketed game would have otherwise bought the game new had used copies not been available.

If used games were considerably cheaper (like $30 instead of $60), I'd be more inclined to agree with you. However, the success of Gamestop contradicts your position because they typically sell used games for only $5-10 less than new ones.

Developers and publishers can't legitimately bitch about used game sales if they are not willing to compete on price with that option.

Okay, let's say that publishers dropped all their prices by $10. Do you really think this would stop people from buying and selling used games? No, it wouldn't. The people who buy and sell used games do so because they want to save as much money as possible without resorting to outright piracy. If a new game costs $50 and a used one costs $40, they will buy the used one. If a new game costs $40 and the used one costs $35, they will buy the used one. In the end, it doesn't matter how much new copies cost if people can always buy used ones.

People use money from selling used games to buy new games. Duh.

If someone is so cheap that they sell everything they buy, isn't it more reasonable to assume that they are more likely to buy used games whenever possible?

In any case, developers don't see any money from that used sale. If you sell a copy of Psychonauts to buy a new copy of Madden, Double-Fine doesn't see a penny. You can claim that you're helping the industry but that's a pretty lame excuse. If you enjoy a game, you should reward the developer who made it.

This comment was edited on Mar 27, 2010, 21:49.
 
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98. Re: Your reasoning is flawed. Mar 27, 2010, 21:05 shponglefan
 
I've Got The News Blues wrote on Mar 27, 2010, 01:04:
That's why I wrote "per unit" in my original post. ;)

True, you did. I guess I was more fixated on the original post you were quoting. My bad.

Yes, but you have to look at the potential market. Video games sell today in a global market, and they are more mainstream than at any other time in the history of the industry. According to VGChartz there have been ~70 million Wii's, ~40 million XBOX360's, and ~35 million PS3's sold worldwide. There is a huge market for video games today, so the industry can certainly sustain a low price/high volume sales strategy and still be successful at least for the most popular game genres. Sure it was easy to justify a $50 price tag back when successful video games sold in the tens or even hundreds of thousands of copies. But, now that the most popular games sell fifteen or twenty million copies or more, $50 per game becomes a lot more excessive and stifling even when the games have eight figure development expenses.

Even so, many games still struggle to make money. Part of the problem is the incredibly huge costs (esp. marketing budgets these days). I'd be curious to see what the break-even points really are and how many games are profitable.
 
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